Gates Case and the 4th Amendment

You have to be careful when you hit the keyboard with a passion to defend your buddy. Boston Cop Justin Barrett has been suspended and is on his way to being sacked for this email, which has some gems. (The full text of the email is at the bottom of this post.) Even for those of us who don’t eat bananas in the jungle, the Barrett Email has some lessons for how to behave when confronted by an earnest expression of police interest:

Your defense of Gates while he is on the phone while being confronted [INDEED] with a police officer is assuming he has rights when considered a suspect. He is a suspect and will always be a suspect. His first priority of effort should be to get off the phone and comply with the police, for if I was the officer he verbally assulated like a banana-eating jungle monkey, I would have sprayed him in the face with OC deserving of his belligerent non-compliance.

There is just a lot to be learned from that comment, isn’t there? If you are a “suspect,” you have no rights, and anything other than responding to the cop’s inquiries is a form of “belligerent non-compliance.” In one way, the claims of Barrett and his lawyer that this was not a racist comment bear some additional consideration. In fact, if the “suspect” were a slightly intoxicated banker fumbling with the keys to his house, or a venerable Irish Monsignor responding to questions about pedophile activity, a different set of Boston police protocols might kick in, but for your average citizen, the failure to stand and deliver when addressed by a police officer may well ignite uncontrollable rage. And an angry cop can arrest just about anyone for no reason and let his “suspect” deal with the consequences.

The Fourth Amendment seems to be missing in action in this discussion. It guarantees our right to be free from unreasonable “searches and seizures,” and in the famous case of Payton v. New York, the U.S. Supreme Court held that the arrest of a murder suspect in his home without a warrant was unconstitutional. A person’s home is accorded special protection under our constitutional jurisprudence. Sgt. Crowley, who arrested Professor Gates, was violating the Fourth Amendment when he allowed his anger to get the better of him. Now Justin Barrett’s unintentionally honest defense of his fellow-officer has confirmed the arrogant attitude behind Sgt. Crowley’s actions.

While Obama now wants to dissolve all the tension at his “beer summit” by lifting a cold one in the company of Gates and Crowley at the White House, it seems the truth just wants to ventilate itself. And the truth is that when police get hot-headed, our rights are at risk. The Constitution and the Bill of Rights are there to rein them in, and to give us relief at the courthouse when they allow their passions to trample on our rights of dignity, freedom of movement, and freedom of speech. If I could have texted Obama an answer to give the reporters who asked him about Gates’ arrest, I would have texted this:

All American police officers are obligated to respect the civil rights of our citizens to remain safe in their homes from a warrantless arrest. If those rights were not respected in this case, then Prof. Gates would have a claim against Sgt. Crowley.

This comment would have dodged accusations of reverse racism and put the shoe on the right foot. Obama is the President of all Americans, and the Constitution and Bill of Rights protect the rights of all Americans. And don’t you forget it.

I agree that I am not hiring you as an attorney by sending you an email, and that you are not required to contact me in return. However, I understand that as your usual business practice, you do answer these emails, and will send a reply. I understand that if I do not get an answer to one email, my only remedy is to send another one. I agree that you can capture my IP address, and if I send spam, I can be reported to the spam police.